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Security forces and human rights

“How does a company ensure respect for the human rights of local communities when circumstances dictate that they must rely on the protection of public security forces with a history of committing human rights violations?”

Security forces and human rights

This page presents an introduction to and analysis of the dilemma. It does so through the integration of real-world scenarios and case studies, examination of emerging economy contexts and exploration of the specific business risks posed by the dilemma. It also suggests a range of actions that responsible companies can take in order to manage and mitigate those risks.

"How does a company ensure respect for the human rights
of local communities when circumstances dictate that they must rely on the
protection of public security forces with a history of committing human rights
violations?"

The dilemma for responsible business is how to ensure the
responsible protection of people and assets, whilst at the same time relying on
public security providers over which it has limited control. Companies will
often prefer to rely on public security providers for protection, for reasons
of costs and accountability. This will only be the case, however, where such
providers are characterised by high levels of professionalism, legitimate
government control, legal oversight and respect for human rights. Ironically,
this will generally be in areas where no such protection is required.

Where public security provision is imperative (for example
in areas of weak governance, conflict and post-conflict conditions), companies
are more likely to enter into relationships with security forces with
questionable human rights records. In some operational environments, enlisting
a public security provider might be an attractive choice to protect company
personnel and assets.

Alternatively, circumstances may dictate that the company is
obliged to rely on public security forces if they are to proceed with their
operations. Taking this route may be a matter of law (for example in the
general provision of law and order by the government), government insistence
(for example in relation to ‘strategic' national projects) or even extortionate
demands by security forces themselves.

Such situations will often present a dilemma to companies in
terms of whether they should proceed with an operation at all (i.e. whether the
benefits outweigh the risks). A variable in this decision-making process will
be the extent to which a company believes it will be able to exercise a degree
of influence or control over public security providers.

In April 2015, Barrick Gold Corporation agreed to pay
compensation to 11 women from the Enga tribe who were allegedly subject to
sexual violence by security guards employed at the company's Porgera mine in
Papua New Guinea (PNG).1
The Porgera mine had a large private security force of approximately 450 guards
in 2011, necessary to protect the mine assets from violent raids by illegal
miners.

The 11 women are among 137 Enga women who said they were
sexually assaulted and imprisoned by Porgera security guards. The 11 women
refused to accept a previous compensation package offered under a "remedy
framework" sponsored by Barrick Gold, when allegations were first published by
Human Rights Watch in 2011.

In response to the claims, Barrick dismissed about a dozen
workers implicated in the assaults or known to have not acted on knowledge of
the alleged assaults. In addition, the company facilitated and cooperated with
a PNG investigation. The compensation payment was the result of a negotiated
settlement with Earth Rights International (ERI), the legal representative of
the Enga women.

In February 2015, Amnesty International issued a highly
critical report
of human rights impacts at the Monywa Copper complex, which includes the Sabetaung
and Kyisintaung (S&K) and the Letpadaung copper mines.2
The report alleges that the mine is linked to large-scale forced evictions in
the 1990s and that community protests have been met with excessive force by
police. Amnesty notes that rather than addressing people's concerns, the
authorities have responded by arbitrarily arresting and detaining activists and
participants in peaceful protests. As such, Amnesty claims that the government
of Myanmar is responsible for the serious human rights violations that have
taken place at the Monywa complex. However, Amnesty also states that the
Canadian and Burmese companies, Ivanhoe Mines and Myanmar Wanbao Mining
involved in developing the mine also bear responsibility for the adverse
impacts.

Norwegian Council on Ethics recommends exclusion of Tahoe
Resources from the pension fund because of security force violations at the
Escobal Mine in Guatemala

In February 2015, the Norwegian Council on Ethics for the
Government Pension Fund Global reiterated its recommendation, first given in
2014, to exclude Tahoe Resources from the Fund on the grounds of the company's
ongoing risk of contributing to human rights violations.3
The Council noted that the company's opening of the Escobal mine in Guatemala
had triggered acts of violence and occurred without proper respect for public
consultation processes. A key incident influencing the Council's decision was
the April 2013 shooting of anti-mine protestors by private security guards working
for a security provider that did not adhere to the International Standards on
Protocol for Security Service Providers. The Council expressed concern that the
company's systems and strategies were still unable to identify, prevent and
remedy human rights violations connected to the mine.

Striking Lonmin miners killed by South African security
forces

On 16 August 2012, 34 people were killed by police at the
site of a miners' strike in Marikana, North West province, South Africa. Over
3,000 miners had gathered on a hillside near the mine, some armed with clubs
and machetes, protesting for a monthly wage increase of around US$1,000.
Eyewitness reports suggest protestors had charged, causing the police to open
fire. The police also claimed the miners had begun ‘firing shots'. However, the
Association of Mineworkers and Construction Union (AMCU) claimed the force used
by the police had been excessive, and accused them of having committed a
‘massacre'. The shootings came after several days of violence in which 10
people, including two police officers, were killed.4

For examples of how multi-national companies such as Talisman
Energy, BP, Chevron, Anglo American, BHP Billiton and others have addressed
such dilemmas through, for example, multilateral security agreements, the
Voluntary Principles on Security and Human Rights, the provision of human
rights training, as well as other methods, see: Security
forces and human rights case studies

Companies are likely to come across this dilemma in a number
of situations, including those where:

There is particular government interest in a
project/operation for political, economic or other reasons

The project is taking place in a conflict or post-conflict
environment that by its very nature demands a strong public security
presence

No realistic alternative can be found for the responsible
protection of people and assets (due to commercial, political or legal
restraints)

The company is subject to effective extortion by public
security providers who purport to be providing protection, but who are in
fact a potential threat if the company refuses to make payments

Security can be provided on three broad bases:

General public security provision, paid for by the state
as part of its general public responsibilities

Special public security provision, paid for by the state
in order to provide additional protection to specific areas or assets
related to company activities

Special public security provision, supported by a company
(whether through financing or otherwise) in order to provide additional
protection to specific areas or assets related to company activities

In many parts of the world, local public security forces
will have a history of abusing the human rights of local communities and other
groups. Typical forms of abuse can range from the relatively minor (such as
illegitimate surveillance and intimidation) to the very serious (such as sexual
violence and unlawful killings).

Business preference for responsible and legitimate
public security provision

In some cases, general public security provision will have
to be accepted in order for relevant projects to proceed – whether as a matter
of law, public policy or contract.

Companies will often consider it preferable to employ
responsible and legitimate public security providers for their protection when
operating in environments characterised by instability and/or high levels of
criminality. Taking this route will free companies from having to employ
private security providers – usually at considerable cost. In addition, in
cases where local governance is stronger, public security forces are likely to
enjoy a higher degree of social, legal and political legitimacy compared to
private security forces, as well as the political and financial backing of
government authorities.

Government preference for public security provision

Similarly, governments will often prefer that companies do
not employ armed private security forces. This is due to concerns about
national sovereignty, the legitimate monopoly on the use of force and issues of
accountability and control. In certain cases, governments are likely to be
particularly keen to ensure their security forces support company activity. For
example:

Extractive projects will often be of strategic
importance to the country of operation, located in remote areas and may even
play a direct role in local instability (e.g. due to community unrest or efforts
by rival groups to control revenue-generating assets). Host governments will
often have a direct interest in the project (e.g. through a joint venture or
production sharing agreement) and be highly motivated to ensure its safety and
continuity (e.g. maintenance of public revenues). Governments will also be keen
to demonstrate their ability to provide a secure and stable
operating/investment environment

For example, in November 2007 the government of Saudi Arabia
announced it was forming a special 35,000-strong rapid reaction force to
protect its energy installations from attacks by militants.In 2015, due
to credible threats of a terrorist attack targeting Saudi Aramco energy
operations, this security force was on high alert.

Likewise, in February 2010, it was reported that the Ugandan
army was creating a special unit to protect strategic assets including the oil
fields located in the Lake Albert basin. Two out of the three fields, which
border relatively unstable parts of eastern DR Congo, are being developed by
UK-based Tullow Oil.5

Major infrastructure projects (such as dams, energy
generation, roads, etc.) will often be of political and strategic relevance for
host governments. The reasoning behind this is two-fold: 1) such projects are
often funded by, or carried out on behalf of the government and 2) such
projects represent substantial and visible actions by the government to promote
national development (and so garner political support)

For example, the Amnesty
International Report 2012 states that, in July 2011, four people were
injured by Ecuadorian police during demonstrations against the construction of
a dam on the Rio Grande in Chone city, Manabi province. Members of local
indigenous communities were protesting against the forced eviction of around
1,700 families that would result from the project. Police reacted by entering
and destroying farmland belonging to the families, and forcibly removing
protesters. The project has been awarded to the China Tiesju Civil Engineering
Group.6
In addition, indigenous community leaders were also subjected to arbitrary
charges of sabotage, terrorism, murder and illegal obstruction of roads whilst
demonstrating against extractive industry operations.7

Defence-related products or services (e.g. arms sales
and training, related technology projects, engineering projects, etc.) are
likely to be subject to strong public security protection. In some cases,
companies will be in a direct commercial relationship with a country's
military, which will set many of the operational conditions.

Human rights abuse scenarios

In many parts of the developing world, however, public
security forces will often have a history of human rights abuse. This is particularly
common in the following scenarios:

Repressive governments that are not subject to the
rule of law and which use public security forces to maintain political control
in the absence of democratic legitimacy

An example of this can be found in Myanmar, where the state
is controlled by the armed forces via the ruling junta. Total's Yadana gas project
(in which Chevron is also involved) has generated considerable controversy due
to allegations of complicity with the actions of the military, including those
relating to forced labour and other serious violations. In 2011, human rights
organisation, Earth Rights International alleged that the military continued to
force thousands of Burmese to work portering, carrying wood and repairing roads
and military buildings, in the Yadana pipeline area.

Political instability and/or conflict, meaning
legitimate public security forces have a mandate for strong action and are
subject to only limited civilian control (whether through the government or the
courts)

An example of this can be found in Nigeria, where the
military – including the Joint Task Force (JTF) created in 2004– has been
tasked with suppression of active militancy and criminality in the Niger Delta.
Violence in the region has seen numerous attacks and kidnappings targeting
multi-national oil companies, such as Shell, Chevron and Agip, as well as state
assets. In May 2009, for example, Amnesty International reported that initial
action by the Joint Task Force (including use of helicopter gunships) killed at
least 100 civilians and displaced 10,000.8
Furthermore, Amnesty International released a public statement in October 2013
seeking a probe into the reported extrajudicial killings of suspects in
detention facilities run by the JTF.9Instability
and weak governance, meaning public security forces of questionable
legitimacy essentially act on an independent basis with little or no civilian
oversight

An example of this can be found in eastern DR Congo, where some
‘integrated' units made up of former anti-government rebels are nominally part
of the national armed forces, but which in reality operate independently and at
great cost to the local population. In March 2011, for example, the UN's Third
joint report of seven United Nations experts on the situation in the Democratic
Republic of the Congo noted that "…serious human rights violations by armed
groups and members of the national security forces continued, including acts of
arbitrary execution; rape; arbitrary arrest and detention; torture; cruel,
inhuman and degrading treatment; and looting". Such violations were at least
partly attributed to "…structural shortcomings and … deficiencies in State
institutions". Similar concerns were still being raised in the report
given by the UN High Commissioner for Human Rights to the Human Rights Council
in July 2015. The High Commissioner stated, "In the western provinces,
particularly in Kinshasa, the deplorable shrinking of democratic space resulted
in serious violations of fundamental freedoms by security forces, mainly
targeting political opponents, human rights defenders and protesters."10
In addition, the report noted that the government expelled the Director of the
United Nations Joint Human Rights Office from the country, after the
publication of a report about human rights violations committed by the
Congolese national police during Operation Likofi in Kinshasa between 2013 and
2014.

Poorly trained and financed security forces can present a
serious challenge, even when they are acting on behalf of and under the general
control of legitimate governments. Problems will not necessarily appear at
unit-level, but may instead be manifested through individual acts of
ill-discipline and independent action. Likewise, poor funding (and non-payment
of salaries in particular) is likely to result in corruption and criminality.

These issues can be found in Mexico, for example, where
members of the internal security forces have been accused of corruption and
severe human rights abuses. The US
Department of State's 2014 Human Rights Report on Mexico states
that "significant human rights-related problems included police and military
involvement in serious abuses, such as unlawful killings, torture,
disappearances, and physical abuse. Impunity and corruption remained serious
problems, particularly at the state and local levels, in the security forces,
and in the judicial sector."11

Commissioning of violations by suppliers and
business partners

In rare cases companies may directly commission human rights
violations or other activities that result in infringements on individual
rights. Whilst multi-national companies are highly unlikely to partake in such
activities, they may nonetheless find themselves accused of complicity where
suppliers, local business partners or host governments act unscrupulously.

Within a company, this might include the use of security
personnel to:

Discourage union activity

Extract forced labour

Enforce workforce discipline

Outside of a company, this might include the use of security
personnel to:

Brazil: Land disputes in rural areas of Brazil often
turn violent. Multi-nationals have been targeted by landless workers' movements
in the form of raids, protests and sabotage. Multi-nationals, as well as legal
and illegal landowners, often engage public and private security forces to
protect business operations and employees in areas that are difficult to
police. Conflicts between landowners and landless workers and indigenous
peoples have reportedly led to human rights violations, including extrajudicial
killings, forced evictions and torture.

Algeria: Islamist attacks in the Maghreb
region pose a security risk to multinational companies. On 16 January 2013, the
Tigantourine gas facility near In Amenas became the site of a hostage crisis
when radical Islamist terrorists, affiliated with Al-Qaeda and led by Mokhtar
Belmokhtar, attacked the facility. With limited consultation of foreign
governments, Algerian special forces attacked the facility in order to free the
workers taken hostage. As a result of this operation, 792 workers were freed
and 40 hostages were killed. Businesses reliant on state security forces for
protection against such attacks may be exposed to the risk of association with
human rights abuses. This is because the as
the Algerian military and police are reported to prevent peaceful
protests by arbitrarily arresting participants and are alleged to use methods
of torture.12

Egypt: Violent radical Islamist groups represent a
security risk. In recent years, Egypt has seen a new terrorist threat emerge in
the Sinai Peninsula, with three major attacks on tourist resorts in 2004, 2005
and 2006 that killed over 100 people. TIn
2015, the 2015 bombing of a Russian tourist jet
after taking off from Sharm el-Sheikh and other small-scale attacks in 2016,
reflect the increasing security threat. Companies relying on state security
forces for protection against the terrorist
threats are, however, at risk of association
with human rights violations. Egypt's security forces have been accused of a
range of human rights violations, including torture,
ill-treatment, harassment and unlawful killings in an environment of impunity.
According to Human
Rights Watch, over 80 people died in clashes with the police during
protests in January 2015 and "security forces – apparently unnerved by rising
armed group attacks – invoked national security to muzzle nearly all dissent."13

India: The majority of extrajudicial and unlawful
killings in India arise in the context of internal armed conflicts and
separatist, ethnic and communal violence. The security forces have been accused
of carrying out widespread human rights violations, including killings, torture
and excessive use of force with impunity.

Indonesia: The Indonesian security forces reportedly
carry out extrajudicial killings and torture, including the use of excessive
force and sexual violence, with impunity. Such violations have also occurred in
the context of business operations. Allegations have also been made that, in
some cases, the security forces create contexts in which their services are
required to maintain order so as to reap financial benefits.

Mexico: Human rights risk in Mexico is predominantly
linked to escalating drug-related violence. Powerful drug cartels, most active
in the northern regions around Ciudad Juárez, are waging a high impact campaign
of intimidation and murder that continues to result in serious violations of
human security. The ‘war on drugs' has reportedly led to widespread human
rights violations, including unlawful killings, rape, torture and arbitrary
detention by the state security forces.

Philippines: The Philippines is currently engaged in
internal armed conflicts with a number of armed groups. Armed groups have on
occasion threatened business interests through extortion and violence. In
response, the government has announced plans to increase militarisation of
mining sites using guards from the paramilitary group Citizens Armed Force
Geographical Unit, rather than the state security forces. Counterinsurgency
security forces have reportedly been responsible for human rights violations
including extrajudicial killings, torture and enforced disappearances.

Turkey: In addition to the risk of association with human
rights violations by the Turkish security forces, businesses may be exposed to
violations committed by so-called "village guards". In Turkey, state security
forces have recruited village guards from Kurdish communities to assist in internal
operations, especially against the armed opposition group, the Kurdistan
Workers' Party (PKK). Turkey's village guards, who are concentrated in the
southeast of the country, are considered to be less disciplined and
professional than other security forces. They are regularly implicated in
theft, rape and other human rights violations. Inadequate oversight and
compensation of village guards from the central government is believed to
account for their behaviour.14

Contraventions of local law by public security providers –
whether related to human rights or not – should result in criminal charges
against the perpetrators. In practice, this is often not the case due to weak
governance, uncertain rule of law or government complicity. This – as well as
the ‘arms-length' relationship that usually exists between public security
providers and businesses – means that criminal charges of corporate complicity
are relatively unlikely.

More commonly, companies may face civil claims – either at a
domestic or international level. The US has provided a favoured forum for
claims of this nature, as the Alien Tort Claims Act has historically allowed
foreign citizens a means by which to initiate actions for legal torts committed
outside of the US. The ability of foreign citizens to bring claims under the
Act has since been restricted as a result of the US Supreme Court's 2013
judgement in Kiobel v. Royal Dutch Petroleum, Co. (Shell).15

High profile legal cases in the US relating to alleged
company complicity in human rights abuses by public security forces include:

Thomson
Safaris v. Soitambu Village Council: In 2010, semi nomadic Maasai
pastoralists filed a claim in Tanzania against Tanzania Breweries (TB) and
Tanzania Conservation Ltd (TC a Tanzanian subsidiary of Thomson Safaris, a
US-based tourism safari company). 16
The plaintiffs allege that the companies forcefully evicted them from
their ancestral land, and acquired it without their prior consent. In
addition, they claim that when trying to access grazing and water sources
on these lands, they have been shot and beaten and arrested. In 2014, the
plaintiffs initiated proceedings in a US federal court and the case is
ongoing.

John
Doe I et al v. Unocal Corp: US oil company Unocal was sued in the US
and settled out of court in December 2004 for the alleged use of forced
labour and other abuses by the Burmese military prior to their
construction of an oil pipeline. At the time, the Burmese government was
Unocal's joint venture partner in the project.17

Bowoto
et al v. Chevron et al: In 1999, a group of Nigerians from the Niger
Delta sued Chevron in the US under the Alien Tort Claims Act claiming
company complicity in violations committed by Nigerian security forces
that resulted in three deaths, allegations of torture and significant
property damage. In December 2008, a jury cleared Chevron of the
allegations, ending the decade-long case.18

John
Doe I et al v. ExxonMobil Corp et al: In 2001, Indonesian villagers
sued ExxonMobil in the US federal court alleging complicity in murder,
torture, sexual abuse and kidnapping by the Indonesian military, who they
alleged had been provided with logistical and financial support by
ExxonMobil to provide security for its natural gas facilities in Aceh. On
30 September 2009, the US District Court granted ExxonMobil's motion to
dismiss the case finding that the plaintiffs did not have standing to
bring the case in a US court. However, on 8 July 2011, the Court of
Appeals reversed the decision, holding that a company should not be immune
from liability under the Alien Tort Claims Act, and remanding the case to
the lower court.19

Wiwa
v. Shell: In June 2009, Shell paid US$15.5 million in an out of court
settlement relating to accusations that it was complicit in the deaths of
nine activists in 1995, including Ken Saro-Wiwa. Despite the payment to
the activists' families, Shell denies liability. The case was filed in the
US under the Alien Tort Claims Act. In the early 1990s, Saro-Wiwa was a
vocal critic of Shell, as well as its impact on local Ogoni communities
and the environment. All nine activists were reportedly tortured by Nigerian
security forces and were hanged for allegedly murdering political rivals
in November 1995 following a trial that human rights activists denounced
as a sham. The plaintiffs claimed Shell provided the military with
transportation, including helicopters.

Kiobel
v. Royal Dutch Petroleum: In 2006, a group of Nigerian citizens
brought an action against Royal Dutch Petroleum (Shell), claiming that the
company had aided and abetted the Nigerian government in committing abuses
against oil and gas development protestors during the 1990s, in violation
of customary international law (CIL). Initially, the US District Court
dismissed the plaintiff's claims on the grounds that CIL did not sufficiently
define the violations alleged, including extrajudicial killing, forced
exile and property destruction. In September 2010, the US Court of Appeals
for the Second Circuit upheld this decision, on the grounds that, among
other things, corporate liability is not a discernible norm of CIL. On
appeal, the US Supreme Court ordered the case to be heard in the October
2012 term on the basis of the following question; "whether and under what circumstances the Alien
Tort Statute … allows courts to recognize a cause of action for violations
of the law of nations occurring within the territory of a sovereign other
than the United States."20
The Court dismissed the case on 17 April 2013, supporting the restriction
of the application of the Alien Tort Claims Act.

The US is not the only jurisdiction in which such cases are
being adjudicated. In 2015, for example, African Barrick Gold (now Acacia)
reached an out of court settlement with 12 claimants in Tanzania.21
The claimants initiated proceedings against African Barrick Gold and its
subsidiary, North Mara Gold Mine Limited (NMGML) in the UK High Court in 2013.
The Tanzanian villagers alleged that the companies failed to prevent the use of
excessive force by police against villagers at the North Mara mine.

Other risks

Even where allegations of complicity do not result in legal
action, companies can still face a range of non-legal risks. These can be of a
short term nature (e.g. operational disruptions as a result of community unrest
aimed at public security forces and/or the company) or of a long term nature
(e.g. sustained consumer campaigns that ultimately require a change in company
strategy or policy with respect to the country in question).

These can include:

Consumer boycotts resulting in reduced sales

Divestment by ethical and mainstream investors resulting
in reduced access to capital

Negative press and activist campaigns resulting in brand
erosion

Loss of social licence to operate resulting in community
animosity and higher costs

Loss of political licence to operate resulting in
non-cooperation by the government and diminished future business
opportunities

Escalating security situations resulting in threats to
employees and assets, as well as higher security costs

Violation of the company's political risk insurance
policy, where this requires certain conflict-sensitive practices

A prime example of the kinds of risks faced by companies,
includes an active movement to boycott companies with business links in Sudan.
This includes Investors Against
Genocide, which runs a shareholder proposal campaign to advance
‘genocide-free' investing. In particular it focuses on "four major oil
companies that are partnering with the Government of Sudan and helping to fund
the genocide in Darfur". These include PetroChina, Sinopec, ONGC of India and
Petronas of Malaysia. Examples include divestment by American Funds of US$190
million of PetroChina assets in February 2010, as well as divestment by the
Teachers Insurance and Annuity Association, College Retirement Equities Fund
(TIAA-CREF) from all holdings in PetroChina, CNPC, Sinopec and ONGC (worth
US$58 million).

For a company to responsibly address public security forces
and human rights, it should first look to comply with relevant national laws.
Where national laws are set lower than international standards on security
forces and human rights, then companies should strive to meet these higher
standards.

To meet this responsibility to
respect human rights, the framework notes that a responsible company should
engage in human rights due diligence24
to a level commensurate with the risk of infringements posed by the country
context in which a company operates, its own business activities and the
relationships associated with those activities.25

The framework, as clarified by
the Guiding Principles, specifies the main components of human rights due
diligence:

A policy statement articulating the company's commitment
to respect human rights and providing guidance as to the specific actions to be
taken to give this commitment meaning: This policy should be informed
by appropriate internal and external expertise and identify what the company
expects of its personnel and business partners. The policy should be approved
at the most senior level and communicated internally and externally to all
personnel, business partners and relevant stakeholders. In addition, it should
be reflected in appropriate operational policies and procedures

Periodic assessment of actual and potential human rights
impacts of company activities and relationships: Human rights due
diligence will vary in scope and complexity according to the size of a company,
the severity of its human rights risks and the context of its operations.
Impact assessment must be continuous, recognising that human rights risks may
change over time as companies' operations and operating contexts evolve. The
process should draw on internal and external human rights experts and
resources. Furthermore, it should involve meaningful engagement with
potentially affected individuals and groups, as well as other relevant
stakeholders

Integration of these commitments into internal control
and oversight systems: Effective integration requires the
responsibility for addressing the impacts by assigning it to the appropriate
structures of the company. It also requires appropriate internal
decision-making mechanisms, budget allocation and oversight processes

Tracking of performance: Tracking of performance
should be based on appropriate qualitative and quantitative metrics and should
draw on feedback from both internal and external stakeholders. In addition, it
should inform and support continuous improvement

Public and regular reporting on performance:
When reporting, companies should take into account the risks the communication
of certain information may pose to stakeholders themselves, or to company
personnel. In addition, the content of the reports should be subject to the
legitimate requirements of commercial confidentiality

Remediation: Where business enterprises identify
responsibility for adverse impacts, they should cooperate will all relevant
stakeholders in their remediation through legitimate processes.

The Guiding Principles emphasize the challenges of doing
business in conflict-affected areas, by stating that ‘the risk of gross human
rights abuses is heightened in [such areas]'.26
Businesses are advised to pay special attention to both gender-based and sexual
violence which tend to be especially prevalent during times of conflict.27
The Commentary to this section of the Guiding Principles states that
‘[i]nnovative and practical approaches are needed' in order to avoid
contributing to human rights violations in these environments'.

While designing its Human Rights Impact Assessment,
businesses may wish to consult existing guidance documents, such as the
International Finance Corporation (IFC), UN Global Compact and International
Business Leaders Forum's (IBLF) Guide to
Human Rights Impact Assessment and Management.28
This latter guide provides companies with a ‘process to assess their business
risks, enhance their due diligence procedures and effectively manage their
human rights challenges.' The online guide takes users through different stages
of the impact assessment process, including Preparation, Identification,
Engagement, Assessment, Mitigation, Management and Evaluation.

Other specific actions to responsibly address public
security forces and human rights can include:29

Security arrangements: Companies should consult with host
governments and local communities about the impact of their security
arrangements on those communities. They should also encourage security to
be provided in a manner consistent with its policies and encourage
transparency (subject to security concerns)

Deployment and conduct: Companies should use their
influence to ensure:

(c) The rights of individuals should not be violated while
exercising the right to exercise freedom of association and peaceful
assembly, the right to engage in collective bargaining, or other related
rights

Where physical force is used by public security personnel,
it should be reported to the appropriate authorities and the company.
Medical aid should be provided to injured persons, including to offenders.

Consultation and advice: Companies should hold regular and
structured meetings with public security providers to discuss security,
human rights and related workplace safety issues. They should also consult
other companies, their host and home governments, and civil society.
Companies – whether individually or collectively – should promote
observance of applicable international law enforcement principles when
consulting with host governments, as well as human rights training for
public security personnel30

Responses to human rights abuses: Companies should report
all credible allegations of human rights abuses by public security
personnel in their areas of operation to the host government. If
appropriate, the company should push for investigation of these claims.
Companies should also monitor the use of any equipment it has provided to
public security forces and investigate incidents of misuse

In October 2014, stakeholders in the Voluntary Principles
agreed in a public
statement that Memoranda of Understanding (MoUs) between companies and
state security forces are "a critical tool to ensure that key
expectations and decision-making processes and procedures can be
established and agreed to – in writing – before potentially dangerous
conflagrations occur".31
Recognising that managing relations with state security forces is
challenging for companies, the Voluntary Principles stakeholders noted
that MOUs enable the company and public security forces to delineate their
respective duties and obligations with respect to the provision of
security in and around the relevant operation

Current participants in the Voluntary Principles include nine
governments (Australia, Canada, Colombia, Ghana, The Netherlands, Norway,
Switzerland, the US, UK) and ten NGOs (including Human Rights Watch).32
Amnesty International withdrew from the Voluntary Principles in 2013. The
organisation reiterated its support for the Principles, which it helped to
formulate, but expressed concerns with the initiative's capacity to hold member
companies accountable to the Principles.33
The Voluntary Principles' 2014-2016 strategy addresses this concern by
committing to establishing a credible process to verify fulfilment of the
Principles.34
Corporate participants include:

AngloGold
Ashanti

Newmont
Mining Corporation

Anglo
American

Norsk
Hydro

Barrick
Gold Corporation

Occidental
Petroleum Corporation

BG Group

PanAust

BHP
Billiton

Pacific Rubiales

BP

Premier
Oil

Chevron

Repsol

ConocoPhillips

Rio Tinto

ExxonMobil

Shell

Freeport
McMoRan Copper and Gold

Sherritt
International

Glencore

Talisman
Energy

Hess
Corporation

Statoil

Marathon
Oil

Total

Newcrest
Mining Limited

Tullow Oil

In 2014, BP recruited a full-time Voluntary Principles Advisor
and joined the Steering Committee of the initiative. BP noted that geographic
areas where they had prioritised Voluntary Principles activity included Angola,
Iraq, Indonesia and Turkey. See:

Newmont Mining prioritises human rights training of private or
state security providers as a key element of the Voluntary Principles. In 2015,
it noted that it was focusing its efforts on operations in Peru, Indonesia,
Ghana and Suriname as areas where its operations are most at-risk of association
with security-related incidents with human rights implications. See:

Shell, which included the Voluntary Principles into Shell's Group
Security Standards in 2007, has used them to inform their standard annual risk
assessment (including the addition of background checks on security staff) and
references them when working with public security providers. See:

Kinross Gold Corporation reports that in 2014 it delivered
training to all of its security workforce as part of the company's Human Rights
Adherence and Verification Program (HRA&VP). This represents an increase on
81% of personnel trained in 2013. See:

In 2011, Eni carried out an extensive training exercise on the
application of the Voluntary Principles on Security and Human Rights at its
Bhit field in Pakistan – and gained valuable insight from participants on the
value of the sensitive treatment of community members and the need to
coordinate security activities with sustainability actions. See:

In January 2014, Rio Tinto extended its commitment to training
its security providers on the Voluntary Principles, through online and
in-person courses that mitigated the risk of conflict at key sites in Africa. Rio
Tinto (Global)

African Barrick Gold plc has entered into Memoranda of
Understanding with the Tanzanian police force to ensure compliance with human
rights standards by encouraging and supporting the provision of training on the
Voluntary Principles to officers and other relevant personnel. See:African
Barrick Gold (Tanzania)

2. Develop multilateral security agreements

Encourage the development of a transparent and well
publicised multilateral security agreement that includes:

The company

Relevant public security officials

Local communities

Local and national government

Local and international NGOs

These can help establish clear, broad-based and recognised
‘rules' by which security will be provided – as well as the respective
responsibilities of all parties concerned. In the event of violations by public
security providers, stakeholders can use the terms of such an agreement as a
means of exerting appropriate pressure on public security providers.

For example, in its 2013 Sustainability Report for
Azerbaijan, BP reported that meetings of its Inter-Agency Security Committee
have been instrumental in exchanging information with communities affected by
their operations. BP established the committee in 2006 to promote structured
dialogue with communities along the Baku-Tblisi-Ceyhan and South Caucasus oil
and gas pipelines. It includes representatives from local police forces and
government agencies, as well as security officers and trained community liaison
officers from BP. As a result of the engagement, BP says the number of
complaints fell, and those that were made were dealt with effectively due to
the established relationships between the parties.

Talisman Energy has helped developed multilateral security
agreements (or ‘convenios') in order to establish the terms under which funds
are used to purchase in-kind support for the security operations provided by
the Colombian military. See:
Talisman Energy (Colombia) - in depth

3. Use influence to promote respect for human rights

Utilise any available leverage with public security forces to
promote respect for human rights in the course of their duties. For example:

Where a company is providing operational support to public
security providers – for example through funding, accommodation,
transportation, etc. – companies should make the provision of such support
conditional upon respect for human rights. These stipulations should
ideally be embodied in a formal contract

Where a company has high level contacts within the host
government, the importance of security providers' respect for human rights
for company reputation – and for its long term commitment to investment in
the country – should be impressed upon them. They should be encouraged to
ensure this message is passed down to relevant security providers through
official channels

Where practical, include security and human rights
provisions in all original investment agreements – including defined
sanctions for relevant transgressions. This might include, for example, a
general requirement to adhere to the Voluntary Principles (see above) or
more specific requirements relating to the training of relevant security
personnel

For example, BP includes human rights and security
provisions in several of its investment agreements. These include a bilateral
security protocol for its Azeri-Chirag-Gunashli oil project, the Shah Deniz gas
project, the South Caucasus gas pipeline and the Baku-Tbilisi-Ceyhan pipeline –
and all future assets in Azerbaijan.

In 2014, Newmont Mining's security specialists in Ghana
worked with the government to develop and formulate an implementation plan for the
Voluntary Principles at a public level.35
The assistance provided by Newmonts' personnel included training, communication
and outreach, practical guidance on MOUs, as well as workshops and conferences
about extractives and security in Ghana.

Talisman Energy has worked with the National Hydrocarbons Agency
and Colombian military to reduce its chances of potential complicity through
its provision of funds to buy in-kind support for security operations. See: Talisman
Energy (Colombia) - in depth

Newmont Mining collaborated with the Ghana government in 2014 to
integrate and implement the Voluntary Principles in policy and practice, See:

Freeport-McMoran signed an MOU in 2013 with the Provincial
Commander of the National Police responsible for security at the Grasberg
Minerals District. The MOU establishes human rights guidelines for security
operations. See:

BP has used a bilateral security protocol to introduce a range of
human rights measures into the legal framework governing its oil and gas assets
in Azerbaijan, and gained government agreement for the extension of the
Voluntary Principles to cover all of its future operations in the country. See:
BP (Azerbaijan)

In 2011 and 2012 Rio Tinto's Global Security team visit its
operations in Madagascar (one of a number of sites deemed to be of a ‘high
risk' nature) to strengthen on-the-ground application of the Voluntary Principles
– including through training and a Memorandum of Understanding with the
government. See:Rio
Tinto (Madagascar)

4. Consider use of private armed security providers

Where due diligence has shown that the public security force
options cannot be relied on to protect human rights, propose the use of well
trained and responsible private armed security providers. Ensure that the
company's contracts with any such private security providers include relevant
conditions relating to:

Exclusion of personnel with any credible allegations of
human rights abuses against them

Efforts should also be made to provide a degree of comfort
to local public security officials by giving them an (appropriate) degree of
operational influence over the use of private security providers (e.g. rules of
engagement, deployment, etc.). Companies should only select private armed
security providers with a record of professional conduct, and which are members
of industry associations with relevant policies and codes of conduct to
encourage good practice.

In recent years, a number of international standards
governing the behaviour of private security agencies have emerged. These
include the following:

The
Montreux Document: This outlines pertinent international legal
obligations and good practices for States related to the operations of
private military and security companies during armed conflict.37
It is an intergovernmental document intended to promote respect for
international humanitarian law and human rights law whenever private
military and security companies are present in armed conflicts

The
International Code of Conduct for Private Security Service Providers
(ICoC): This is a
multi-stakeholder initiative setting out private security industry
principles and standards, based on international human rights and
humanitarian law.38
The 2010 Code built on work done to produce the Montreux Document. It aims
to improve the accountability of the industry by establishing specific
principles for the conduct of personnel and regarding management and
governance

ANSI/ASIS
PSC.1-2012 Management System for Quality of Private Security Operations:
This is an American National Standard, designated by the American National
Standards Institute (ANSI).39
PSC.1-2012 is the core standard – out of four in total - which addresses business
and risk management for private security service providers operating in
regions of high risk. The standard establishes a mechanism for providers
to demonstrate commitment, conformance and accountability to the
principles in the ICoC and the Montreux Document.

ISO 18788:
Management System Private Security Operations: On 18 September
2015, the International Organization for Standardization (ISO), published its
new standard, which is based on the documents set out above. ISO 18788 "specifies
requirements and provides guidance for organizations conducting or
contracting security operations. It provides a business and risk
management framework for the effective conduct of security operations."40
ISO 18788 relies upon a Plan-Do-Check-Act approach, to demonstrate risk
management capacity, assessment and management of community impacts, and
accountability to the law and respect for human rights.

The Charter and Principles of the British Association of Private
Security Companies provide common human rights standards for armed private
security providers – including refusal of "contracts for the provision of
security services where this will conflict with relevant human rights law".
See:British
Association of Private Security Companies (Global) - in depth

ExxonMobil has incorporated contractual requirements on human
rights training (including on their Principles on Security and Human Rights,
the UN Code of Conduct for Law Enforcement Officials, and UN Principles on the
Use of Force and Firearms by Law Enforcement Officials) into more than 50
percent of its private security contracts. See:
ExxonMobil (Global)

Freeport-McMoRan reports that in 2014 it contributed its
expertise by serving as a member of the United States' Technical Advisory Group
for the development of ISO 18788: Management System Private Security Operations.
See:

Diamond mining and processing group De Beers has laid down a
number of principles in its Security Forces and Human Rights Policy. This sets
out a number of clear requirements for private security staff hired by the
company that aim to protect human rights – and is supported by auditing,
consulting and reporting programmes. See:
De Beers (Global)

5. Support human rights training

Provide/fund human rights training to relevant public
security personnel to ensure a common understanding of:

The human rights standards that are required of them

The legal consequences of infringements for both the
company and public security providers

Common scenarios in which violations might take place

The procedures that they should follow in order to avoid
such violations

Training should be carried out in cooperation with security
force commanders and other relevant public officials.

For example, in 2008 BP supported progressive human rights
training for public security forces (as well as its own guards) at its Tangguh
LNG project in West Papua, Indonesia. The initiative was conducted through an
external consultancy and two senior Indonesian police instructors. Training was
also provided for members from two regional police units in Bintuni and
Fak-Fak, as well as members of the national police's mobile brigade.

In addition, Freeport-McMoRan provides security training to
government security officials where feasible. Its PT Freeport Indonesia
operation has developed a range of training materials including videos for
security personnel for use in DR Congo, Chile and Peru.

In 2008, Anglo Platinum financially supported the development of
a human rights and policing training module as a core part of the South African
Police Service's training curriculum. All Anglo Platinum security personnel
also undertook courses in security and human rights. See:
Anglo American (South Africa)

In 2014, Newmont Mining highlighted the importance of training
public and private security providers on the Voluntary Principles at its sites
in Peru, Indonesia, Ghana and Suriname. See:

In 2008, BHP Billiton undertook human rights training at 35 of
its sites (mainly in South Africa, Australia and South America) involving more
than 11,000 employees and 14,000 contractors, whilst its operated security
personnel undertook human rights training at 24 out of 29 sites. See:
BHP Billiton (Global)

Freeport McMoran developed and applied a new risk assessment for
sites to conduct specific human rights and security risk assessments to ensure
alignment with the Voluntary Principles. These assessments were implemented in
DR Congo and Indonesia in 2014. See:
Freeport-McMoran (Indonesia and DR Congo)

In 2011, Eni carried out an extensive training exercise on the
application of the Voluntary Principles on Security and Human Rights at its
Bhit field in Pakistan – and gained valuable insight from participants on the
value of the sensitive treatment of community members and the need to
coordinate security activities with sustainability actions. See:
Eni (Pakistan)

In 2011 and 2012 Rio Tinto's Global Security team visit its
operations in Madagascar (one of a number of sites deemed to be of a ‘high
risk' nature) to strengthen on-the-ground application of the Voluntary
Principles – including through training and a Memorandum of Understanding with
the government. See:Rio
Tinto (Madagascar)

African Barrick Gold plc has entered into Memoranda of
Understanding with the Tanzanian police force in 2015 to ensure compliance with
human rights standards by encouraging and supporting the provision of training on
the Voluntary Principles to officers and other relevant personnel. See:African
Barrick Gold (Tanzania)

6. Establish grievance mechanisms

Establish and publicise an independent, rights-compatible
grievance mechanism to allow employees and local communities and stakeholders
to lodge complaints (whether anonymous or not) regarding security practices or
the behaviour of public security providers. This will:

Allow monitoring of the human rights risks that its public
security providers are posing to the company

Allow the company to act as a ‘champion' for those whose
rights have been infringed – particularly where existing legal mechanisms
are unlikely to provide investigation or redress. Appropriate care should
be taken regarding anonymity where complainants are at potential risk

Provide credible evidence of ‘non-performance' by public
security providers, where the company has made them subject to relevant
human rights requirements (see above)

For example, Anglo American's Speak-Up program channels
complaints to an external service provider that then forwards these in
anonymous form to a response team within the company.41

In 2014, Rio Tinto reported that its whistleblowing service
Speak-OUT is now accessible to all employees, suppliers and contractors within
to make a complaint regarding human rights violations. 5,
Newmont Mining conducts quarterly internal reporting and measurement of company
response and resolution of complaints and grievances. See:

7. Promote community liaison committees

Encourage the formation of a community liaison committee
with the following composition:

The company

Relevant public security officials

Local communities

Local and international NGOs

Local and national government officials

This will provide a forum by which communities can voice
recommendations, concerns and grievances in an informal and constructive way.
Inaugurating this channel of communication can help ensure security
arrangements remain responsive to community needs and reduce the chances of
friction and conflict that may ultimately give rise to human rights violations.
It can also keep the company informed of the human rights performance of
relevant public security forces, allowing it to take early action with respect
to potential challenges before they occur.

For example, Freeport-McMoRan has a Human Rights Policy that
requires each operating site to establish its own Human Rights Compliance
Officer. They serve as liaison points for site-based departments, including
security, human resources and community affairs – as well as public security
officials. The goal of this role is to ensure that reported human rights
violations are documented, investigated and resolved in a timely fashion.

Kinross Gold reports that in 2014 alone, it engaged
approximately 90,500 stakeholders – including community members, government
representatives and non-profit organisations in order to promote strong
communication with affected communities and other local stakeholders.42
Kinross establishes transparent relations with local stakeholders by holding
regular meetings with officials and neighbours; giving presentations to
communities, businesses, governments and schools; opening mines for public
tours; participating in local cultural and sports events; and being open to
daily, informal and impromptu conversations. The company reports that it has
never experienced a major event or permitting delay caused by stakeholder
concerns despite operating in high risk locations in West Africa and Latin
America.

24 According to the Special
Representative of the Secretary-General on the issue of human rights and
transnational corporations, human rights due diligence is ‘a process whereby companies not
only ensure compliance with national laws but also manage the risk of human
rights harm with a view to avoiding it.'
See: UN SRSG, ibid.

29 Suggested actions are for
guidance only. Depending on the circumstances, these may not be relevant to all
companies. The suggested actions may be adopted and adapted in certain
regions/sectors/contexts where risks are known to be greatest. The adoption of
these actions will also be dependent on the company's existing policies,
resources and procedures, as well as the cost-benefit of undertaking these
actions, which indeed might be the root cause of the dilemma itself. The aim of
the Forum is to encourage business, trade unions, civil society and other
stakeholders to engage on the dilemma topic, to augment the suggestions and to
provide additional insight and case examples.

30 E.g. the UN Code of Conduct
for Law Enforcement Officials and the UN Basic Principles on the Use of Force
and Firearms

32 There are also three
‘observer' organisations (the International Committee of the Red Cross, the
International Council on Mining & Metals, International Petroleum Industry
Environmental Conservation Association)

35
Newmont Mining, 2015, Annual
Report to the Voluntary Principals on Security and Human Rights. Available
at http://www.voluntaryprinciples.org/wp-content/​uploads/2015/10/Annual-Report-Voluntary-Principles​-Newmont-Mining-Corporation_August-2015.pdf

36 E.g. the UN Code of Conduct
for Law Enforcement Officials and the UN Basic Principles on the Use of Force
and Firearms

Public security forces should provide effective protection
to the civilian population against human rights violations, while acting within
the law and under the control of civil authority. Governments have the primary
responsibility to promote and protect human rights, which includes ensuring
that its security forces do not themselves commit human rights violations.

However, governments do not always fulfil this
responsibility. In many cases public security forces are the worst perpetrators
of human rights abuses. According to the Maplecroft's Security Forces and Human
Rights Index 2015, the 10 highest risk countries (all of which are considered
to present an ‘Extreme Risk') are:

Companies operating in emerging economies are often faced
with significant security challenges. Such challenges regularly arise in
countries where the security forces, paramilitaries, and private security
companies have a history of committing human rights violations. This may be as
a result of current or previous armed conflict, because the security forces are
corrupt and ill-disciplined, or there are significant governance gaps.

Ironically, the attributes of operating environments that
make the need for enlisting security personnel most compelling (e.g. political
instability, conflict and insurgency, weak civilian control, public repression,
etc.), also make it unlikely that security forces will act in a legitimate,
controlled and responsible way.

This is reflected in the fact that five out of the 10
countries that represent the highest risk to human security are the same
countries that represent the highest risks with respect to security forces and
human rights. According to the Maplecroft's Human Security Risk Index 2015, the
10 highest risk countries (all of which are considered to present an ‘Extreme
Risk') are:

Figure 3: 10 highest risk countries for human security

1. Syria

6.
Afghanistan

2. Iraq

7.
Pakistan

3. DR
Congo

8. Nigeria

4. Sudan

9. Yemen

5. Central
African Republic

10. South
Sudan

Post-conflict countries, such as Sierra Leone, Liberia and
others are also likely to pose particular challenges in this respect. Whilst
they are not ranked as ‘Extreme Risk', public security personnel in these
countries have often been conditioned by years of violence, have ready access
to firearms and have developed a culture in which the use of excessive violence
is relatively normal.

Human rights impact

Human rights that are typically subject to violations by
repressive and/or ill-disciplined public security forces include:

Right to freedom from arbitrary arrest, detention or
exile (ICCPR, Article 9): Whilst many public security forces are
likely to have legitimate powers of arrest, in the case of poorly
regulated and judicially unaccountable paramilitary and military forces,
there is a danger that illegitimate arrest and detention will take place
with impunity.

Right to life (ICCPR, Article 6): The use of armed
guards present particular risks in terms of the legitimate (i.e. in lawful
self-defence), illegitimate (e.g. use of excessive force) and accidental
(e.g. negligent discharge) killing of local people and/or employees.

Right not to be subject to torture, cruel, inhuman
and/or degrading treatment or punishment (ICCPR, Article 7): Where
companies are relying on security forces with very poor human rights
records, they run a serious risk that they may be complicit in acts of
inhuman treatment or torture – whether by public security units or
individual public security personnel. This is particularly the case where
such forces form the only real authority in an area and are not subject to
close oversight.

Right of detained persons to humane treatment (ICCPR,
Article 10): Public security forces are likely to need to detain
individuals in the course of their duties. Even if such detention is
legitimate in the circumstances, the detainee's rights are likely to be
violated if they are held in inadequate or inhumane conditions – for
example without food or water, in extreme heat or cold, etc.

Right not to be subjected to slavery, servitude or
forced labour (including sexual and economic exploitation and trafficking)
(ICCPR, Article 8): In extreme cases, public security forces may
forcibly enlist local people, either for their own purposes (for example
the provision of food, domestic services or sex) or for purposes that
indirectly benefit a company (for example land clearance and other forms
of unskilled labour). Security forces may also be posted to ensure that a
company's employees are unable to leave the factory, creating a situation
of forced labour.

Right to freedom of movement (ICCPR, Article 12):
In some cases, security forces may infringe people's right to free
movement. For example, illegitimately obstructing access roads using
checkpoints and road-blocks, thereby making land inaccessible to the local
population, could constitute an infringement of this right.